CHAPTER 4:

OFFICERS OF THE COURT, THE LAW, AND

DEVELOPMENT OF LAW
CONTENT:
• OFFICERS OF THE COURT
• LEGAL PRACTICE ACT
• STATE LAW ADVISERS
• LEGAL PRIVILEGE
• CONFIDENTIALITY
• ORGANISATIONS ASSISTING WITH DEVELOPMENT OF LAW
 OFFICERS OF THE COURT
PAGE 45 - 46
• ATTORNEY-GENERAL: APPOINTED FOR EACH DIVISION OF THE HIGH COURT AND RESPONSIBLE FOR
CRIMINAL PROSECUTIONS AND ARE SUBJECT TO THE CONTROL OF THE MINISTER OF JUSTICE.
• MASTER OF THE HIGH COURT: IN THE HIGH AND IS RESPONSIBLE FOR THE CONTROL AND ADMINISTRATION
OF THE ESTATES OF MINORS, INSANE AND INSOLVENT PERSONS.
• REGISTRAR OF THE HIGH COURT: IN THE HIGH COURT AND IS IN CHARGED OF THE ADMINISTRATION AND
RUNNING OF THAT DIVISION.
• REGISTRAR OF DEEDS: APPOINTED TO REGISTER RIGHTS OVER PROPERTY.
• PUBLIC PROSECUTOR: IS A PUBLIC SERVANT WHO REPRRESENTS THE STATE;S CASE IN CRIMINAL CASES. IN
THE HIGH COURTS THEY ARE KNOWN AS STATE ADVOCATE OR COUNSEL.
• PUBLIC DEFENDER: A LEGAL PRACTITIONER WHO REPRESENTS ACCUSED PERSONS WHO CANNOT AFFORD
LEGAL REPRESENTATION IN CRIMINAL PROCEEDINGS.
• CLERK OF THE MAGISTRATES’ COURT: IN CHARGE OF ADMINISTRATION OF THE MAGISTRATES’ COURT
• SHERRIFF: RESPONSIBLE FOR THE SERVICES OF THE HIGH COURT AND MAGISTRATES’ COURT DOCUMENTS
SUCH AS SUMMONSES.
 THE LEGAL PRACTICE ACT
• The Legal Practice Act 28 of 2014 regulates the legal profession.
• It regulates how legal practitioners provide services and how the legal profession functions.
• The Act sets out the following:
The types of legal fees that can be charged
Community service by practising legal practitioners
The creation of a single statutory body to regulate the affairs of all legal and candidate legal practitioners.
The establishment of an office of Legal Services Ombud
The development of professional ethical standards for conduct of legal practitioners
A procedure to resolve complaints against legal practitioners and candidates
Training programmes for legal practitioners and candidates
 LEGAL PRACTICE ACT
• The Act creates the South African Legal Practice Council. This body governs the legal profession and makes rules relating to
how legal practitioners are allowed to practice law.
• All legal practitioners and candidate practitioners must register with the Council, and remain enlisted or enrolled in a Roll of
Legal Practitioners in order to be allowed to practice law.
• Practitioners can choose to enroll as an advocate or attorney.
• Separate rules for attorneys or advocates can be made by the Council.
• Candidate practitioners who have satisfied all administration requirements, must apply to a division of the High Court for
admission to the profession.
• If the High Court is satisfied that they are fit and proper person for the profession, then the High Court will admit them.
• The Council has an insurance scheme for the issue the Fidelity Fund Certificate and this fund reimburses clients’ money if it is
stolen or used without their authorization. It is compulsory for every attorney and advocate to have current fidelity fund
certificate.
• Only a duly admitted and enrolled legal practitioner is allowed to provide legal services.
• A legal practitioner whose name has been struck off the roll of legal practitioners, or suspended from legal practice, may not
 LEGAL PRACTITIONERS: ADVOCATES AND
ATTORNEYS
• Legal practitioners: Advocates and Attorneys
• Candidate legal practitioners who are undergoing practical vocational training to
become either an attorney or advocate.
• Requirements to become a legal practitioners:
1 Must be a South African Citizen with an LLB Degree, if a foreign degree must be
recognized in South Africa
2 Have completed a practical vocational training including community service, community
service may include working for the State or a commissioner in the small claims court
3 Have passed a competency=based entrance exam for attorneys and advocates.
 LEGAL PRACTIONERS

• An attorney who passes a specialized exam on property may become eligible to enroll as a conveyancer.
• Conveyancers specializes in the following:
• Draft deeds, certificates, applications, consent and other documents involving rights over land, this involves the
transfer of real rights such as ownership or possession.
• Prepare agreements relating to expropriation, leases, housing, mining, share blocks and agricultural land.
• Draft and register contracts providing for specific use, access or restrictions applicable to immovable property.
• Notaries specializes in the following:
• Prepare and register notarial deeds of servitudes, ante nuptial contracts, cessions etc.
• Prepare noting slips, deeds of presentation and deeds of protest for bill of exchange
• Authenticate documents
• Execute and register registerable leases and draft wills and trusts
 RIGHT OF APPEARANCE
• A candidate legal practitioner can appear in regional magistrates’ court after completion of his or her one year of
vocational training
• Attorneys can appear in any magistrates’ court or tribunal, but may appear at the High Court, Supreme Court CC If
he or she gets a certificate from the High Court in which he or she was admitted or enrolled as a legal practitioner.
• Advocates can appear in any court or tribunal.
• FORMS OF LEGAL PRACTICE
• Attorneys are lawyers that clients normally see first with their legal problems. They give general advice in law. They
practice law for their own account, as an employee or partner in a law firm, as part of a non-profit law clinic,
university law clinic or Legal Aid South Africa, as an attorney employed by the State (State Attorney)
• Advocates: Are more experienced and specialist lawyers to which clients are referred if matter is complicated or
involves a large sum of money. They can practice as follows: For their won account, as part of a non-profit law
clinic, university law clinic or Legal Aid South Africa, as advocates employed by the State (State Advocate) or
within the Human Rights Commission. Advocates may also be called Counsel
 FEES FOR LEGAL SERVICES
• Fees must be in accordance with the tariffs published by the Rules Board for Courts of Law. When an attorney or
advocate first receive instructions from the client he or she must provide the client with a written cost estimate
specifying the following: The likely financial implications, the attorney’s or advocate’s hourly rate., an outline of
the work to be done, in the case of an attorney, the likelihood of engaging an advocate, depending on seniority or
expertise. If the matter involves litigation, the legal and financial consequences of the client’s withdrawal from
litigation, costs etc.
• As an alternative to agreeing to a cost estimate it is possible for a client to enter into a contingency fee
arrangement. The Act provides for two contingency fee agreement: No win, no fee agreement. Higher fees
agreement if the client is successful, but the higher fees may not exceed the normal fee , in the case of a claim for
money this fee may not exceed 25%
• STATE LAW ADVISERS
• They give advise to ministers, they also draft bills and assist in criminal and constitutional matters.
• State attorneys derives their powers from the State Attorney Act.
 LEGAL PRIVILEGE

• This is a general rule of common law.

• Privilege refers to the information that is private between a legal practitioner, this information is
protected from disclosure, in that it may not be used as evidence. This is also referred to as “client
legal privilege”.
• The purpose of legal profession privilege is to allow the client and legal practitioner to
communicate freely about issues that are subject to legal proceedings, or anticipated as being
subject of legal proceedings
• The communication is protected to facilitate the proper functioning of adversarial system of justice
because it encourages full frank disclosure between advisors and clients.
• This promotes fairness in litigation. In criminal proceedings, this right is protected and is necessary
to uphold the right to a fair trial in terms of section 35 of the Constitution.
• Communications between a legal advisor and his or her client are protected from disclosure
provided they meet certain requirements:
 LEGAL PRIVILEGE
• The legal advisor must have been acting in a professional capacity at the time.
• The advisor must have consulted in confidence.
• The communication must have been made for the purpose of obtaining legal advice.
• The advice must not facilitate the commission of a crime or fraud.
• The privilege must be claimed.
Privilege material may not be admitted as evidence without consent, not may it be seized under a search warrant.
The right to privilege may be claimed by the right-holder’s legal representative. This right is however not absolute, it
may depending upon facts of a specific case, be outweighed by countervailing considerations.
It can be waived expressly, tacitly or by conduct.
 CONFIDENTIALITY

• A legal practitioner has a duty to preserve the confidentiality of all communications with the client.
• There are three ways this duty can arise:
1 It is an express or implied term of the contract of mandate.
2 There is an ethical or fiduciary relationship of trust between the client and the legal practitioner
3 There is a delictual duty prohibiting such disclosure.
Confidentiality is a wider right, since information can be confidential even when it is not protected by privilege.
Confidentiality extends to all information in respect of the client’s affairs. Right to confidentiality belongs to the
client who can expressly waive this right.
This right is important as it allows the client to disclose relevant information freely to the legal practitioner. Legal
practitioners must make sure that that this right is upheld at all times.
A breach of this duty by a legal practitioner may lead to an action for damages or a court interdict to prohibit further
disclosure
ORGANISATIONS THAT ASSIST IN THE DEVELOPMENT
OF THE LAW PAGE 52-53
• Rules Board for Court of Law
• Justice College
• Office of the Family Advocate.
• Legal Aid South Africa.
• Office of the Public Protector.
• Magistrates Commission.
• South African Law Reform Commission.
• Judicial Service Commission.
• Judicial Inspectorate of Prisons.
• South African Human Rights Commission.
• Commission on Gender Equality.